How to Prepare and Use a DMCA Takedown Notice

The Digital Millennium Copyright Act (“DMCA”) is a U.S. law designed to protect content creators (and Internet Service Providers), and to “maintain a balance between the rights of authors and the larger public interest.”

I could write a book (and people have) describing the DMCA in detail, but the part of the law most relevant to authors – and the topic of today’s post – is the DMCA Takedown Notice.

(Advance apologies for the length of this post, but it takes a little space to describe the process in a useful way.)

Under the DMCA, website hosts and ISPs must promptly investigate and resolve copyright infringement claims, provided the claims are presented in a DMCA-compliant notice (normally called a “DMCA Takedown Notice”). The legal requirements for this notice are established in 17 U.S. Code Section 512 (c)(3). In practical English:

To put an ISP on notice of copyright-infringing material on a hosted website, the person claiming infringement (or his/her representative) must send the ISP a written notice (many ISPs accept these notices in electronic format, and many websites post a DMCA submission form) containing the following information:

Identification of the infringing material that the owner is asking the ISP to remove (or disable access to), along with enough information for the ISP to locate the material. (Normally, a URL or link to the infringing content on the hosted website.)

Identification of the copyrighted work the owner claims has been infringed. (If multiple works by one author are involved, the owner can send a single notice that lists all of the works.)

Sufficient information for the ISP or website to contact the author of the DMCA complaint. (Generally, a physical address, telephone number, and valid email address.)

A statement that the complaining party (you, if you’re preparing the notice) has a good faith belief that use of the copyrighted material is not authorized by the copyright owner, any agent of the owner (such as a publisher), or the law.

A statement, made under penalty of perjury, that the information in the notice is accurate and that the complaining party (you, if you’re sending it) is the copyright owner or legally authorized to act on the owner’s behalf.

The physical or electronic signature of the copyright owner (or an authorized representative, like an attorney, agent, or publisher).

Before you send a DMCA notice to a website or ISP you should:

Make sure the website doesn’t have permission to post the material. Check your contracts, licenses, and grants of rights (and check with your publisher, if you have one) to make sure the use is actually a copyright infringement. It’s embarrassing to send a DMCA notice and get a response that says, “We have a license.”

Make sure the use is not “Fair Use.” Generally, offering free access to a copyrighted work, in its entirety, without permission, is copyright infringement – but if the use is only an excerpt, or if you’re not certain about fair use, contact a lawyer before proceeding with a DMCA notice.

Confirm the proper recipient of the notice. If the website doesn’t include a copyright agent or administrator’s contact information, you can generally send the notice to the website host (the ISP that hosts the website on its servers).

Be aware: a DMCA Notice is only legally operative within the United States, in countries that are signatories to the copyright treaty that prompted the DMCA’s enactment in the United States, and in countries that have enacted laws similar to the DMCA (with similar notice requirements).

And now for the bad news:

Unfortunately, even within the United States, DMCA notices are a lot like locks – they only work with honest people. Since most of the people who steal content are not honest to begin with, many DMCA notices end up being ineffective.

Also, while you can send a DMCA notice anywhere in the world, it doesn’t carry the same legal weight outside the United States, and websites that exist purely to infringe copyrights (by pirating material) will ignore infringement notices (for obvious reasons). Regrettably, neither DMCA notices nor litigation tend to be effective at stopping deliberate infringement.

That said, DMCA notices can be effective with U.S. based websites, especially those that host third-party work on a regular basis.

Finally, here’s a sample DMCA notice, so you see what one actually looks like:

*****

[Notice Address of ISP to whom the notice is sent]

Attention: [ISP Name] Copyright Agent [Agent/ISP Contact address]

This letter is an official DMCA Takedown Notice, intended to provide you with formal notice of copyright infringement and a request to remove infringing material pursuant to Section 512 of the U.S. Copyright Act (17 USC § 512) and any other applicable laws or regulations.

The following copyrighted works (“Works”) are or have been posted on your website without the permission of the author or copyright holder:

[List of works infringed, by title, including publisher and copyright date.]

The Works are or have been posted at the following location(s) on your website:

[URL’s on the relevant website where the infringing work appears.]

The address, telephone number and e-mail contact information of the individual providing this notice are as follows:

[Address, phone, email redacted.]

To the best of my knowledge and good faith belief, that use of the Works on your website is not and has not been authorized by the copyright owner, any agent of the copyright owner, or applicable law. Please remove the Works from the referenced portions of your website immediately.

I hereby declare, under penalty of perjury, that: (a) the information in this notice is complete and accurate to the best of my personal knowledge and belief, (b) I am either the copyright holder or a person legally authorized to act on behalf of the copyright holder, and (c) the physical or electronic signature at the end of this communication is the signature of the copyright owner or person authorized to act on behalf of the copyright owner of the works listed above.

Please contact me immediately if you require additional information.

Respectfully, [Signature.]

*****

While not all DMCA notices will be effective (and, regrettably, many will not), knowing how to prepare and use a DMCA Takedown Notice is an important skill for authors to possess, and it can be an effective tool for removing infringing content from the Internet.

And now for the legalese:

DISCLAIMER: The sample DMCA Notice above, and the content of this post, are provided for informational purposes only, and are not provided or intended as legal advice to any person. This article does not create an attorney-client relationship between the author and any person. Use of information appearing at this article is done at the user’s own risk and not at the advice of the author or any other person, and neither the author nor Writer Unboxed have made any representations or warranties about its effectiveness. If you think you need legal advice, or that you have legal claims against any person or entity, consult a lawyer promptly.

Susan Spann writes the Hiro Hattori Novels (Shinobi Mysteries) featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo, who solve mysteries set in medieval Japan. Her first novel, Claws of the Cat: A Shinobi Mystery (Minotaur, 2013) was a Library Journal mystery debut of the month and a finalist for the Silver Falchion Award for Best First Novel. Her fourth Hiro Hattori novel, The Ninja’s Daughter, releases August 2, 2016 from Seventh Street Books.
Susan is the 2015 Rocky Mountain Fiction Writers’ Writer of the Year, and also a transactional attorney whose practice focuses on business and publishing law. She founded and curates the Twitter hashtag #PubLaw (for Writers), where she answers questions and provides information about publishing business and legal issues.
When not writing or representing clients, Susan enjoys traditional archery, reading fiction and nonfiction, and raising seahorses and rare corals in her marine aquarium. She lives outside Sacramento, California, but you can find her online at http://www.SusanSpann.com, on Twitter (@SusanSpann), or on Facebook/SusanSpannBooks.

Comments

Thank you, Susan, for this comprehensive post today. So important. I’ve had these troubles on all three of my novels and have submitted DMCA notices regularly; I reported to Google too, hoping to damage the search options. In some cases the offending websites who pirated my book were taken down. However, these people just get another host/server and go live again somewhere else, sometimes outside of the US. I actually chased one guy from Russia to UK to Germany to Poland, trying to shut the websites down all over Europe. I’m afraid it becomes a time-absorbing task of cat and mouse. For me, the bottom line is that when you are an author with a book out there, you might as well expect it to be pirated at some point. I’ve learned to chalk it up to the fact that some people will read my book for free or pay a flat rate to a thief in a scam book sale. Dickens, Poe, and Longfellow all suffered from book piracy. It’s been going on for centuries.

Susan, I am a business copywriter as well as a fiction writer, and I wrote a full eldercare services website for a businessman, who decided not to pay me half of the agreed fee.

He put the site up, and I had it taken down through a DMCA notice to the site’s ISP. He continued to not pay me, and months later had the site up again through a different domain name and server, but I found it and told him I’d have it taken down again. He finally paid me.

It was a bit tedious to go through all that, but DMCA did right by me in the end. Thanks for the solid info.

Hello, I’m interested in the fair use of copyrights.
One of the themes in my novel is fantasy v reality.
Two characters are talking about a TV show called Kung Fu. I want to use the actual title of the show because my character got an idea from an episode. In reality, I got the idea from the episode and I want to use the title for realism. since the characters say it is a TV show, do I need to add any copyright information, legally?
Also, one character says they get ABC, CBS, NBC, and PBS. Sometimes FOX. Am I required to put a copyright symbol after each station name?
Thank you!

Recently, many authors have been alarmed by the blatant piracy of Ebook.bike This persistent pirate has been identified and was taken down, but–no surprise–has reappeared. In this case, simple takedown notices aren’t going to be enough.

The Author’s Guild has recommended further action, which you can find here:

Here’s an irony: I published my first novel under a Creative Commons Attribution-ShareAlike license (meaning that people are free to use and reuse the text in any way they like – even commercially – providing they attribute the original work/author and share derivative works on the same basis), and as far as I know, no one has taken advantage of this permission, let alone tried appropriating rights I haven’t released.

But perhaps they’re like comment trolls: you only get them once you’ve been around a while and made a name for yourself.